The controls should have rendered moot any further argument about the validity of the sample. But they did not. Barry Scheck kept Fung on the stand for seven days over the course of two weeks. The entire time Scheck slashed away at him in his nasal, nails-on-chalkboard voice for things like storing the samples in a hot truck, and accusing him of handling evidence without gloves and not using a fresh set of tweezers for each swatch.
Red herrings all. Later in the trial we would bring on Gary Sims of the California Department of Justice, who set the record straight. DNA is a much tougher material than the defense would have you believe. Gary described tests run by the FBI in which agents had done about every stupid thing you could think of to contaminate evidence. They’d used the same pair of scissors to cut different swatches without cleaning them in between. One analyst had sweated on samples before testing them. One agent coughed on samples for a solid minute. The testers even shook dandruff on their samples. In each case, the contaminants had no effect on the DNA profile. Even the defense’s own expert witness, Henry Lee, would later testify that a cop could track blood from the crime scene or the heel of his shoe, and that blood could produce a valid test result. As for degradation, DNA gives valid results on body parts found out in the jungle after days of exposure to hot sun, dampness, insect infestation, and animal scavenging. You’re going to destroy it during a few hours in a warm truck?
The bigger point, however, was this: under no circumstances could either contamination or degradation yield a set of flawed results all pointing to a single suspect. And yet, this was the very premise upon which Scheck sought to discredit Fung.
I found little to admire in Barry Scheck. Here was a man who was an expert in the science of DNA. He believed in it. He’d staked his reputation on it. He and his partner, Peter Neufeld, had founded an organization called the Innocence Project, which routinely used DNA testing to exonerate defendants falsely convicted of crimes. He knew what contamination and degradation could and could not do to a sample.
Now, you could argue, “He’s a defense attorney. A defense attorney knows what the truth is and he argues counter to it all the time.” But when a lawyer who’s an authority in science gets up and puts forward a defense based on what he knows to be scientifically incorrect, you’re talking about something far worse than professional sophistry.
Not only did I find Scheck’s performance intellectually dishonest, I considered him by far the most obnoxious lawyer in that courtroom. And that’s saying a lot. Scheck’s treatment of Dennis Fung was deplorable. Even Lee Bailey had displayed a fundamental courtesy to Mark Fuhrman while dueling to the death with him on cross.
Not Scheck. He knew he was going up against a witness who was easy pickings, someone from whom he could have extracted every concession he wanted, with kindness. And yet he set upon Fung like a common bully, jabbing a stubby finger in his face and screaming “Liar!”
Dennis, who wanted only to please, buckled in the first ten minutes.
Scheck would pose to him absurd hypotheticals. Remember the blanket Tom Lange had found inside the condo and spread over Nicole’s dead body? It was back to haunt us. Barry contended that when Tom performed this act of decency he had “contaminated” the crime scene. O. J. Simpson had visited this residence, Scheck observed. He might have “sat or laid” on that blanket and shed his own hair on it.
“Could that, in your expert opinion,” he asked Dennis, “be a source of secondary transfer of his hairs to the crime scene?”
Hank and Chris and I cringed. We knew what was coming.
“It’s possible” was the reply.
“. . . Are you with me so far?” Barry queried.
“It’s kind of hard to follow,” Dennis replied. “But yes.”
“And if a dog… Kato the dog… were lying on this blanket… dog hairs can be transferred to the blanket?”
“Yes.”
“And the dog itself may have hairs and fibers from other people with whom it has been in contact?”
What Dennis could have said, and should have said, was this: “Counselor, if you’re asking me if that blanket could transport dog hairs that were carrying Mr. Simpson’s hairs that subsequently found their way to the inside of the knit cap, I’d have to say this scenario is too ludicrous to warrant serious consideration.”
Instead, Dennis replied, “Yes, there’s a chance.”
Scheck hoped to use Fung to advance the theory that the blood on the back gate at Bundy had been planted sometime later than June 13. He got Fung to say that he had not seen the blood himself that morning. Fung also testified that he’d not heard Tom Lange ask him to collect the stains on the morning of the first search.
Scheck pulled out one of the photographs of the back gate taken at such an angle that the blood spots were not apparent.
“Let’s look back at the picture of the gate on June thirteenth.”
The photo was displayed on the Elmo. No blood to be seen.
Scheck turned to Dennis and in a tone as contemptuous as it was shrill, inquired, “Where isss itttttt, Misterrrr Fung?”
That line, of course, became the sound bite du jour. But it was revealed for the empty histrionics it was when we introduced our own shot of the gate—which showed that at least one of the stains was clearly visible.
Scheck moved on to another tack, building to what he no doubt expected would be a boffo climax. He’d hoped to establish that Phil Vannatter had kept custody of Simpson’s reference vial long enough to plant the blood to frame him. Fung had testified that Phil had brought it to Rockingham in the late afternoon of June 13 and personally handed it over at about 5:20 P.M. But there was no written record of that exchange. Scheck produced a series of video clips from a local station, KABC. They showed Fung and Andrea Mazzola leaving the house, putting various items into the crime-scene truck. But a gray envelope carrying the blood vial was not among them.
Scheck tried to cast Dennis in the role of a conspirator by suggesting that he’d lied about ever receiving the blood from Vannatter. In an attempt to establish this, he produced a crime-scene checklist filled out by Fung and Mazzola and turned over to the defense during discovery.
Page 4
of this document was different from the others. It was not an original; it was a photocopy. You could tell that because there were no staple holes, just black hen scratches where the holes should have been.
Scheck intended to use this to suggest that the original page would have shown Dennis’s actual log-cut time, which, he speculated, was 5:15 P.M. (This was based upon nothing, as far as I can tell, but Scheck’s fevered imagination.) Since Vannatter arrived at 5:20, that would mean the two had missed each other.
“If there were something filled in there that said five-fifteen as to the time leaving the scene,” Scheck charged, “that would be inconsistent with what you wrote [5:20 P.M.] on the gray envelope you received from Detective Vannatter?”
Hank objected. He was overruled.
“If there was that time there,” Dennis said meekly. “Yes, it would.”
Scheck acted as though he’d cornered the kidnapper of the Lindbergh baby.
“And that is why you
destroyed
the original page four, Mr. Fung?”
At the break we noticed that Dennis happened to be holding his case notebook.
“Dennis,” Hank asked him, “could I take a look at that?”
Hank quickly flipped through the binder. And from a pocket on the inside cover, he withdrew the original of the infamous
page 4
. It was
identical to
the photocopy. No mention of 5:15 P.M. or any other time. We decided that we would not share this development with Scheck. He had, after all, ambushed us with the copy; let him find out about the original the hard way.
The timing was perfect, because after the break Hank started redirect.
“During the recess, sir,” he asked the witness, “did you have an opportunity to look in your notebook and find the original of page four?”
Yes, he did. Dennis produced the form.
Scheck predictably screamed “discovery violation,” but this time Ito tuned him out and let Hank pass the original of the disputed
page 4
among the jurors.
Live by the sword, die by the sword, buddy.
Still, lodged in the jurors’ recent memory were those snippets of videotape that Scheck had introduced, showing Dennis and Andrea purportedly leaving Rockingham without the vial of Simpson’s blood. These, he’d intimated, showed that Dennis had deceived the court when he’d testified about receiving the blood vial from Vannatter.
Now, Dennis Fung might be a dope, but he was not a liar. We knew the truncated footage did not tell the whole story.
Hank and Bill Hodgman were quietly negotiating with KABC for the portion of their videotape that had not aired. Normally, broadcasters are reluctant to release unaired material. Maybe the execs over at the station felt Fung deserved a break, I don’t know. Anyway, on Easter Sunday, Hank was in the office, working with Fung on upcoming redirect, when the unedited footage arrived.
There is a wonderful account of this in Hank’s own book,
The Prosecution Responds
. He tells how he and Dennis sat over bagels and lox and ran the outtakes. Sure enough, at 5:17 P.M. by the time counter, there was Phil Vannatter strolling up the Rockingham walk. “He was carrying a leather attaché case,” Hank recalled, “the way a schoolboy would carry a notebook against the side of his body. A gray piece of paper sat on top of the attaché case. A gust of wind blew back the top of the paper, allowing us to see the reverse side. We could clearly observe the flap and metal clasp, showing that it was the back of an envelope.”
The envelope carrying the blood vial. Dennis could identify it by the form printed on the face of the envelope.
“We could see a long shot of the front door at Rockingham,” Hank writes. “Just inside the foyer, we could see Dennis. In one hand he had the plastic garbage bag. In the other, he had what could only have been the evidence envelope containing the vial.”
Dennis jumped up for joy, screaming, “Yes! Yes! Yes!”
First thing on Monday, Hank played that tape for the jury. Barry was forced to eat crow.
“Your Honor,” he said with uncharacteristic humility, “we have viewed the… tape. It is certainly enlightening.”
The defense ended up stipulating to the time on KABC’s footage. And Hank went on to do a beautiful job on redirect.
Dennis stepped down on April 18. He’d been on the witness stand over two interminable weeks. Most of this time had been pissed away on Scheck’s cross. As Dennis tried to make his escape from the courtroom, he was intercepted by a jubilant defense team, who shook his hand and greeted him like a long-lost relative. I was baffled. For starters, why were attorneys for the defense displaying public affection for a man who, they’d just claimed, helped frame their client? And why on earth was Fung allowing himself to be fawned over by these hypocrites? When Hank asked him about it later, Dennis replied that he’d been “somewhat in a daze” after leaving the witness stand. And knowing Dennis, that answer rings true.
It is that curious image of him fraternizing with his tormentors that lingers in the memory of the public. Seared with equal clarity into the American consciousness are those shrill invectives of Barry Scheck. What amazed me was that he drew such favorable reviews for his performance.
No question, Fung turned in a sorry performance. But in the end, Scheck bluffed, Hank called him on it. And Barry had to fold.
CAR TAPE.
April 18. Just heard that some idiot out there’s come out with an unauthorized biography on me. The weird thing is to see the change in the judge’s attitude
. . . .
It’s like, the more famous I get the more he’s willing to pay deference, to be nicer to me… . Ito is really somebody who is very affected by the media stuff, by popularity, you know? When Johnnie was the most famous one… he was very deferential, to the point of idiocy. But I think having the press call him on his deference to Johnnie and then maybe hearing the jurors say that Johnnie was in control of the courtroom perhaps set him back a bit. But I think what set [Ito] back even more is seeing my getting famous. It’s all of a sudden somebody else whose favor he needs to curry. Very weird. Very, very weird
.
CAR TAPE.
April 27. Constantly sick. I can’t seem to recover. Finally, my teammates pushed me in to the doctor
. . . .
I just need rest. With all this stress, I mean, it’s impossible. I can’t just go home and lie down. There’s just no corner. I really hope something gives somewhere. This is just too much. Fortunately, it’s not my witness who’s up right now, and I can afford the luxury of concentrating on the custody case for a little bit
.
I needed more time. I always felt breathless, my chest constricted with fatigue. I woke up each morning in a state of dread, knowing that before the day was through some new crisis was sure to break. To make things worse, by the time Dennis Fung got off the stand, it looked like we might be headed for a mistrial.
We were losing jurors at the rate of about two a month. The judge, of course, was worried that we wouldn’t have enough alternates to last the trial, which now looked like it would be going well into the summer. Lawyers on both sides of the room kept an anxious eye on the shifting composition of the jury.
In January we lost a middle-aged female juror whom we’d pegged as pro-prosecution. She’d stated right up front on her questionnaire that she’d had to get a restraining order against her abusive ex-boyfriend. How the defense had dropped its guard long enough to let her slip through, I don’t know.
But now they were looking to rectify their error. It turned out that the ex-boyfriend had called the court claiming that she shouldn’t be on the case because she’d had problems with black co-workers. The charges were investigated; they were bunk. What was happening is that the son of a bitch was harassing her even as she sat behind a veil of sequestration. The thing I found so sad about this is that, in managing to be get herself on this jury, the woman had found herself a temporary haven.